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Bouquet? Buttonhole? Pre-nup?

You know how lawyers like to say, “That depends”, well that’s what I’m going to say in answer to this question. As well as, “Welcome to a very large club”.

The desirability of having a pre-nup depends on your values, your age and stage, and on how you see the financial aspects of your relationship.

• Are money and assets part of the deal, or do you see them as separate from other aspects of your relationship?

• Do you want to protect what you have now, or the promise of what you may personally receive or build in the future?

• Are there people other than your partner who may need to be cared for too?

• Is this a second relationship?

• Do you have children from a previous relationship?

• Have you had, or do you expect to receive a significant inheritance and want to have the option to protect that from your partner?

• Are you part of a family business or farming family?

• Have you heard divorce horror stories?

These are all fair questions, and the way you answer them will help you decide if a pre-nup is something you should explore. The more “Yes’s” the higher you score on the need for a pre-nup.

What kind of people want pre-nups?

I can answer this one without a “that depends”.

These days pre-nups are discussed more openly, and they are not just for people who have loads of money.

You could say that the people who want pre-nups are the planners, those who would prefer to have difficult discussion now than at a time when they are separating or there is conflict in their relationship.

It is still the case that men are likely to earn significantly more in their lifetime than women, but financial equality and separate financial lives in marriages and relationships are increasingly common. Unless you have a pre-nup, the law will take little or no notice of how you have arranged your financial lives during your marriage or relationship. That means you need to use a pre-nup to set out your intentions, if they are different from what the law might do.

Whose idea is this anyway?

Often parents of one partner will urge the idea of a pre-nup. That might be to preserve established family wealth, because they think their own child is the more financially stable or has superior financial potential, or it could be as plain as not liking the partner too much, or thinking that they are a potential gold digger.

My experience says that unless this is your own idea, you should think very carefully about a pre-nup. If you’re old enough to be in a relationship, you’re probably also old enough to make these decisions yourself, and I have seen many cases where the influence of parents was unwelcome and destructive to the younger couple. Conversely, there are situations where the wisdom of the parents shouldn’t be overlooked, and being open to a reasonable discussion on the topic is also wise. But only when that is a dialogue.

And if you have a pre-nup, will it hold water?

The truth is that I can’t say “Yes” to this question. In most cases, it is a “Yes”, but the variables are the quality of the legal advice both parties receive, the legal skill in drawing the document, and then what goes on in the life of the couple. If no appropriate provision has been made for a spouse who takes family leave, or a spouse who becomes ill or unemployed, or where there is great variation in the assets between drawing the pre-nup and a separation, or if the terms of the agreement look oppressive, then there is a better than even chance that the disempowered party will get advice to challenge the pre-nup.

What will your partner think of the idea?

I have never seen a situation where the partner with less power or money initiated the drawing of a pre-nup. And that pretty much tells you the story. Your partner won’t particularly like the idea if there is wealth disparity. They may co-operate for the sake of the relationship, but if you are the initiator, the brutal truth is that you hold the cards, and you need to think about how the exercise of this power feels for your partner, and what it means for your relationship. I always call a psychologist in for this conversation.

What if you can’t agree on what it says?

Like all negotiations that lead to agreements, you need to hear and understand each other. If, after considering the above, you can’t agree on the terms of your pre-nup, then maybe it’s an entirely different conversation you need to be having?

What if you decide half way though discussions that you won’t bother?

That sometimes happens when these agreements are discussed collaboratively, and from a whole perspective. It is usually about trust having been built, or some better understanding having been reached about each other or what the law provided anyway, or, on balance, one person deciding to prefer the relationship over the financial aspects of it.

What if you decide that maybe you don’t like this person so much now?

That also happens, sometimes. If a pre-nup is based on open and honest conversation, it is human nature that a percentage of those conversations will be more negative than positive. It is either a risk, or an early test of the relationship. These are not easy choices or easy conversations, and again, having a psychologist on board is invaluable.

How does a pre-nup work if you later on have children?

Apart from disparity of wealth, I think the arrival of children is the single biggest problem with pre-nups.

I’m a parent, and after I became one, I realised that nothing written on paper, or that had been in my head about parenthood, was true!

Creating a pre-nup that protects you no matter what way you find need to parent, or whatever your kids need you to do as parents, is probably not possible. How do you manage to cover the birth of a child with special needs, the illness of a child, illness or disability of a parent, the ability of both parents to participate in paid work, to contribute to their superannuation, or many of the other challenges that life can present?

A pre-nup is never tailored to the reality of any of these situations, and what would be fair and equitable at that time. It is advisable to talk about sunset clauses in your agreement, or a mechanism for re-negotiation in the face of real life intervening in the legal theory about your pre-nup. Again, the disempowered person will want this conversation, the other may not.

Second time round?

Second or subsequent relationships are the time when pre-nups are easier to discuss. Firstly, you are both presumably older and wiser. Secondly, there are often children from previous relationships of one or both of you, and it is a social norm that you would want to protect their support or potential inheritance.

The horror stories.

Yes, there are many of them. “She took everything”, “He left me with nothing”. That kind of story? You’d be amazed how often statements like the above come from the two halves of the same couple. An individual’s perspective is a fascinating thing.
It is a good idea to ask your lawyer what the comparison between the likely court-based outcome would be, versus what you would want to achieve in a pre-nup. In other words, make sure your decision to have a pre-nup, or not, is based on good information and not on assumptions you hold without even knowing what they are.

Equity

A pre-nup is a contract. Its integrity will be judged in part by the equitable principles of contract law. Be sure that your pre-nup is based on honesty, fairness, transparency, and that there has been no pressure or duress in its negotiation or timing.

Or in my words, make sure your pre-nup is based on a real evaluation of what the future could spring on you, truthful conversations about the rationale for the agreement, respect, your different understanding about money and an understanding of each other’s psychological take on the whole business. That is, a collaborative approach.

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Marguerite Picard

It is my passion to challenge traditional thinking about divorce, to see common sense prevail, so that divorce is separated from 'the law'. Apart from mediation and collaboration being my daily bread, as a practitioner and a trainer, I aim to change the world. A little.

Located in Hawthorn, Melbourne

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I am an Accredited Specialist Dedicated to Keeping Families out of Court. My aim is to deliver a different, kinder divorce for my clients.